Here - OHRH - University of Oxford

The Legal Regulation of Home Birth in the
Domestic Jurisdictions of the Council of Europe
Research prepared for the League of Human Rights, the Czech Republic
February 2015
1
CONTRIBUTORS
Faculty reviewer:
Dr Barbara Havelková
Shaw Foundation Fellow in Law
Lincoln College and Faculty of Law,
University of Oxford
Research co-ordinator:
Yulia Ioffe
DPhil Candidate, University of Oxford
Researchers:
Laura Carlson
Dmitry Krasikov
Associate Professor, Department of Law, MJur Candidate, University of Oxford
Stockholm University;
Fellow in Law at Christ Church College, Selma Mezetović
University of Oxford
MJur Graduate, University of Oxford
Michèle Finck
Michael Rhimes
DPhil Candidate, University of Oxford
BCL Candidate, University of Oxford
Daniel Franchini
Tamas Szigeti
MJur Candidate, University of Oxford
DPhil Candidate, University of Oxford
Ivo Gruev
MJur Candidate, University of Oxford
2
In addition, the research co-ordinator would like to thank:
•
Professor Hugh Collins, Acting Dean of the Oxford Law Faculty, for his support of this
project;
•
The Members of the Oxford Pro Bono Publico Executive Committee, Professor Sandra
Fredman, Dr Liora Lazarus, Dr Jacob Rowbottom, and Dr Eirik Bjorge, as well as
the members of the Student Committee (Zachary Vermeer, Arushi Garg, Helen
Taylor, Victoria Miyandazi and Michelle Kang) for their support and assistance with
the project.
•
The lawyers of NGO Vaša Prava BiH, in particular, Lejla Šlak, as well as Nedim
Muminović for the their assistance with the report on Bosnia and Herzegovina.
Indemnity
Oxford Pro Bono Publico (OPBP) is a programme run by the Law Faculty of the University of
Oxford, an exempt charity (and a public authority for the purpose of the Freedom of
Information Act). The programme does not itself provide legal advice, represent clients or
litigate in courts or tribunals. The University accepts no responsibility or liability for the work
which its members carry out in this context. The onus is on those in receipt of the programme’s
assistance or submissions to establish the accuracy and relevance of whatever they receive from
the programme; and they will indemnify the University against all losses, costs, claims, demands
and liabilities which may arise out of or in consequence of the work done by the University and
its members.
Intellectual property
This report has been prepared exclusively for the use of the League of Human Rights in the
Czech Republic, in accordance with the terms of the Oxford Pro Bono Publico Programme. It
may not be published or used for any other purpose without the permission of OPBP, which
retains all copyright and moral rights in this report.
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Table of Contents
PART 1 .................................................................................................................................. 5 EXECUTIVE SUMMARY ..................................................................................................... 5 I. INTRODUCTION ............................................................................................................... 5 II. NATURE OF THE RESEARCH .................................................................................... 6 III. SUMMARY CONCLUSIONS ........................................................................................ 8 PART 2 ................................................................................................................................ 10 COMPARATIVE REPORTS .............................................................................................. 10 I. ENGLAND AND WALES ................................................................................................... 10 II. GERMANY ............................................................................................................................ 21 III. ITALY ................................................................................................................................... 30 IV. FRANCE ............................................................................................................................... 37 V. SWEDEN ............................................................................................................................... 39 VI. BOSNIA AND HERZEGOVINA ................................................................................... 43 VII. RUSSIAN FEDERATION .............................................................................................. 46 VIII. HUNGARY ....................................................................................................................... 52 4
PART 1
EXECUTIVE SUMMARY
I.
INTRODUCTION
1. This report is prepared by Oxford Pro Bono Publico (OPBP) for the
League of Human Rights, the Czech Republic (LHR), to assist in the
preparation of a referral request to the Grand Chamber of the European
Court on Human Rights (ECtHR) with respect to the case of Dubská and
Krejzová v. the Czech Republic, 1 in which the LHR represents one of the
applicants, Ms. Dubská.
2. The case arises from two applications of Czech women who were not
allowed to give birth at home with the assistance of midwives. They
complained to the Court that the Czech law prohibiting health
professionals to assist at home birth violated their right to private life
under Article 8 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR). 2
3. The ECtHR held that the impossibility to be assisted by midwives during
home birth constituted an interference with the right of applicants to
respect for their private lives. 3 Nevertheless, after conducting a threestep balancing analysis of the permissibility of such interference pursuant
to Article 8 (2) of the ECHR, the Court decided that there was no
consensus among the member States on this complex matter of health
care policy. 4 Therefore, the Czech authorities did not exceed the wide
margin of appreciation or strike an unfair balance between the competing
interests of the mothers in choosing where to give birth and the State in
protecting the health of mothers and children by adopting such a
restrictive policy relating to home birth.
5
Consequently, the Court
decided that there was no violation of Article 8 of the ECHR.
Dubská and Krejzová v. the Czech Republic App nos 28859/11 and 28473/12 (ECtHR, 11 December 2014).
ibid [69].
3 ibid [78].
4 ibid [59]-[61], [93].
5 ibid [101].
1
2
5
4. This decision conflicts with the previous ECtHR decision in the case of
Ternovzky v. Hungary, 6 where the limitation of the applicant’s choice with
regard to home birth was recognised as an unlawful restriction of the
women’s right to private life. 7
5. The Court in its decision in Dubská and Krejzová v. the Czech Republic
largely relied on the absence of a European consensus regarding the
regulation of the issue of home birth. In particular, the ECtHR analysed
the comparative material covering thirty-two member States, which
showed that sixteen member States expressly allowed home birth under
certain conditions, and that the other half did not expressly regulate this
matter. 8 The full comparative analysis of the Court, however, has not
been provided to the LHR.
6. The LHR’s goal in challenging the ECtHR decision is to argue that the
Court was wrong to recognise the interference with women’s right to
decide the birthplace of their children compatible with Article 8 (2) of
the ECHR and to show that there is indeed a consensus among the
member States of the Council of Europe permitting home birth with the
assistance of health care professionals (midwives).
II.
NATURE OF THE RESEARCH
7. To assist the LHR with its referral request to the Grand Chamber of the
ECtHR in this case, particularly, with regard to the analysis of general
trends in the legal regulation of home birth and midwifery services,
OPBP
has
undertaken
comparative
research
jurisdictions of the Council of Europe.
8. The countries selected for consideration are:
I. England and Wales
II. Germany
III. Italy
IV. France
V. Sweden
Ternovszky v. Hungary App no 67545/09 (ECtHR, 14 December 2010).
ibid [26]-[27].
8 Dubská (n 1) [59]-[61].
6
7
6
of
eight
domestic
VI. Bosnia and Herzegovina
VII. Russian Federation
VIII. Hungary
9. The questions that the researchers have addressed are the following:
1. Is the issue of home birth regulated by law and how?
2. If the issue of home birth is not regulated expressly, is a ‘home
health care’ generally regulated by law (including home care for the
elderly, etc.) and how? Does this regulation prevent health care
providers from provision of care at home birth? Does it exclude
the possibility of home care during childbirth?
3. Where a health care professional can face sanctions for having
assisted with planned home birth, how is a possibility of sanctions
regulated and worded?
9. All the researchers have undertaken the research in answer to these three
questions. However, in some jurisdictions, where home birth is allowed
by law and health care professionals are not sanctioned for assisting in
home birth and/or ‘home health care’ does not cover midwifery services,
the researchers focused only on Question 1 (as Questions 2 and/or 3
were not applicable to their jurisdiction). Each report, nonetheless,
provides a comprehensive analysis and helpful insights as to the
regulation in every jurisdiction of the women’s right to physical
autonomy, private life, and freedom to choose the place of birth of their
children, including home birth assisted by health care professionals
(midwives).
10. The reports have attempted to address relevant legislation and selfregulatory rules and standards of medical professionals, as well as, where
applicable and possible, case law, actual practice and public debate
regarding the possibility of women to have access to midwife-assisted
home birth.
11. The report on Hungary differs from the others, as it aims, in response to
the LHR’s request, to analyse the new legislation on home birth that was
adopted after the above mentioned ECtHR decision in the case of
Ternovszky v. Hungary. 9
9
Ternovszky (n 6).
7
III.
SUMMARY CONCLUSIONS
12. This section is a summary of our main findings about the legal reality of
home birth and midwifery services in respect of each of the three
questions. In it, we seek to identify broad trends across the eight
surveyed jurisdictions.
Question 1: Is the issue of home birth regulated by law and how?
13. In all researched jurisdictions the issue of home birth is not regulated
expressly, neither specifically permitted nor prohibited, except Germany,
where home birth with assistance of midwives has been explicitly allowed
since 2012.
14. In England and Wales, Italy, France, Sweden, and Hungary home birth
assisted by midwife is implicitly allowed. These provisions usually derive
from the right to self-determination and private life.
15. On the other hand, in Bosnia and Herzegovina and the Russian
Federation, midwives and health care professionals are effectively
prohibited from assisting women during labour at home through
licensing regulations and/or limitations on medical institutions and
equipment necessary for provision of midwifery services. Additionally, in
Bosnia and Herzegovina and the Russian Federation women encounter
certain administrative difficulties with registration of their children, if
labour took place outside the hospital.
16. It should be noted, however, that no jurisdiction that was analysed for
the purposes of this report prohibits women from having home birth. If
any, the restrictions concern exclusively the assistance of midwives and
health care professionals.
17. In countries where midwife-assisted home birth is allowed, the law still
imposes certain conditions on women that choose home as place for
labour, including low-risk pregnancy, age, proximity to the hospital, etc.
In some jurisdictions, including Italy, Sweden and France, lack of
coverage by medical insurance seem to be one of additional obstacles
that women come across when opting for childbirth at home.
8
Question 2: If the issue of home birth is not regulated expressly, is a ‘home health care’ generally
regulated by law (including home care for the elderly, etc.) and how? Does this regulation prevent health
care providers from provision of care at home birth? Does it exclude the possibility of home care during
childbirth?
18. Even though home birth is not regulated expressly in seven out of eight
jurisdictions examined in this report, it also does not appear to be
specifically regulated in the provisions regarding home health care. For
example, in Bosnia and Herzegovina home health care concerns
exclusively people with permanent mental and physical disabilities or the
elderly.
Question 3: How is a possibility of sanctions regulated and worded in the States, where a health care
professional can face sanctions for having assisted with planned home birth?
19. Among the examined jurisdictions, Bosnia and Herzegovina and Russian
Federation sanction health care professionals for assisting in planned
home birth. In neither of these jurisdictions does the law expressly
envisage sanctions for assisting home birth. Nonetheless, the provisions
are formulated in a way that makes it impossible for midwives or health
care professionals to assist in home birth without violating the law. This
is achieved either with rules regarding the mandatory equipment for
medical institutions or terms of possessing a medical license.
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PART 2
COMPARATIVE REPORTS
I. ENGLAND AND WALES
A. Summary
20. Home birth is not unlawful in England and Wales. Midwifery services at
home are provided free of charge to the patient, 10 with an individual NHS
Trust paying for the services. 11 The availability of home birth is seen as
an element of a woman’s free choice in Parliamentary debates and is a
cornerstone of maternity services in England and Wales, although various
practical obstacles have meant that the courts have not recognised this
qua legal right. Medical evidence suggests that home birth can even be
safer than giving birth in a specialised hospital unit.
B. Legal Framework
Creation of National Health Service
21. Since 1948 there has been a National Health Service (NHS) in the United
Kingdom. Section 1 of the Health and Social Care Act 2012, a statutory
duty upon the Secretary of State to ‘continue the promotion in England
of a comprehensive health service designed to secure improvement— (a)
in the physical and mental health of the people of England, and (b) in the
prevention, diagnosis and treatment of physical and mental illness.’ This
obligation includes, per section 3(d) of the National Health Service Act
2006 for the arrangement of the provision of ‘services or facilities for the
care of pregnant women.’ By section 1(4) of the same Act, these services
must be provided for free at the point of treatment.
Regulation of Midwives
See s1(4) of the Health and Social Care Act 2012: ‘The services provided as part of the health service in
England must be free of charge except in so far as the making and recovery of charges is expressly
provided for by or under any enactment, whenever passed.’
11NHS, ‘Pay for Midwives’ <http://www.nhscareers.nhs.uk/explore-by-career/midwifery/pay-formidwives/> accessed 15 February 2015.
10
10
22. Midwifery forms part of a state-sanctioned and largely self-regulated
professional system. 12 Specifically, the Nursing and Midwifery Order SI
2002/253 creates the Nursing and Midwifery Council (NMS) (Article 3).
The Order further, in Article 41, creates the statutory Midwifery
Committee.
23. The NMS has produced the NMS Rules and Standards (NMS Rules) and
the non-binding Code of Practice (NMS Code of Practice). In addition, it
produces various statements and guidelines about maternal health and
midwifery practice.
Home Birth
24. There is no specific statutory basis for the right to have a home birth.
However, such methods clearly fall within section 3(d) of the National
Health Service Act under which the State is obligated to make provisions
for the care of pregnant women. Moreover, section 296(4)(b) of the same
Act refers to the obligation to contact the local Primary Care Trust
imposed upon ‘any person in attendance upon the mother at the time of,
or within six hours after, the birth’ in attendance upon refers to the
activities of a midwife. This clearly, albeit impliedly, shows that there is
no comparable statutory restriction on midwife-assisted home birth.
25. There is ample non-statutory evidence that midwife-assisted home birth
takes place. Some examples may be given:
a. On the official NHS website, it is stated that ‘[i]n England, around one in
every 50 babies is born at home. If you give birth at home, you'll be
supported by a midwife who will be with you while you're in labour.’13
b. A Nursing and Midwife Council Circular March 2006 entitled ‘Midwives
and Home Birth’ outlines professional duty of the midwife to support the
woman and, significantly, the woman’s right to a choice for care including
the place of birth.14
c. In 2004, in response to a question by Helen Clark in the House of
Commons, Dr Ladyman stated that ‘[w]e expect the NHS to provide a
range of maternity services that includes the provision of home births.’15
Fiona Culley and Anapuma Thompson, The Regulatory Perspective: Professional Regulation of Nurses
and Midwives, in John Tingle and Alan Cribb (eds) Nursing Law and Ethics (4th Edition 2014).
13 NHS, ‘Where to Give Birth: the Options’ <http://www.nhs.uk/conditions/pregnancy-andbaby/pages/where-can-i-give-birth.aspx> accessed 15 February 2015.
14 Nursing Midwifery Council Circular 8-2006 (13 March 2006) <http://www.nmcuk.org/documents/circulars/2006circulars/nmc%20circular%2008_2006.pdf> accessed 15 February 2015.
15 HC Deb 13 September 2004 vol 424 c1469W.
12
11
d. ‘Community midwives can attend women who have chosen to deliver
their baby at home, or they may accompany women to hospital to give
birth.’16
Specific Legal Provisions Regulating Home Birth
26. There is a criminal offence in the UK of ‘attending a woman in child
birth while unqualified’ outside of cases with ‘sudden or urgent
necessity.’ 17 The last such prosecution was in 1980s, and is rare. 18
27. Beyond this, there is little regulation of home birth. The relevant
principles of the UK approach can be distilled into the following three
strands:
a. Legally, there is a strong emphasis on autonomy, leading to a light-touch
regulatory approach to home birth (autonomy).
b. More generally, health services in the UK will actively respect the choices
made by women in respect of the birth location (respect).
c. Finally, there is generally an encouraging attitude to home birth
(encouragement).
These will be considered in the following section.
Legislative Interpretation of the Right to Home Birth
28. In addition, a number of governmental reports from the Department of
Health consider that the choice of a home birth is a priority for maternity
services in the UK. This list can be read in conjunction with the sources
offered in [36]:
a. Department of Health, Delivering High Quality Midwifery Care: ‘The
project’s vision for tomorrow’s midwives is that all pregnant women will
be cared for by a midwife they can get to know and trust in or near their
home.’19
b. Health Care Commission, Toward Better Births: ‘The choice of home
birth should be offered to all women.’20
c. Maternity Matters 2007 Department of Health: ‘In 2005, the Government
underlined the importance of providing high quality, safe and accessible
HC 464 – I House of Commons Health Committee Provision of Maternity Services Fourth Report of
Session 2002–03Volume I [147].
17 The Nursing and Midwifery Order 2001 (SI 2002/253), art 45.
18 Bridgit Dimmond Legal Aspects of Midwifery 2014 4th Ed Quay Books.
19 Department of Health, ‘Delivering High Quality Midwifery Care: the Priorities, Opportunities and
Challenges
for
Midwives
(2009)
11
<http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/en/Publicationsand
statistics/Publications/PublicationsPolicyAndGuidance/DH_106063> accessed 15 February 2015.
20 Health Care Commission, Toward Better Births, A Review of the Maternity Services in England, 33 (July
2008).
16
12
maternity care through its commitment to offer all women and their
partners, a wider choice of type and place of maternity care and
birth. Building on this commitment, four national choice guarantees will
be available for all women by the end of 2009 […] The national choice
guarantees described in this document are: Choice of how to access
maternity care; Choice of type of antenatal care; Choice of place of birth
– Depending on their circumstances, women and their partners will be
able to choose between three different options. These are:
i. a home birth
ii. birth in a local facility, including a hospital, under the care of a
midwife
iii. birth in a hospital supported by a local maternity care team
including midwives, anaesthetists and consultant obstetricians.
For some women this will be the safest option
iv. Choice of place of postnatal care.’
(emphasis supplied)
29. The legislature has clearly considered that home birth is a matter that
touches upon the sphere of women’s autonomy. This can be seen in many
instances of Parliamentary discussion:
a. ‘The Government want to ensure that, where it is clinically appropriate, if
a woman wishes to have a home birth she should receive the appropriate
support from the health service. At the end of the day, it must be the
woman's choice.’21
b. ‘Being the key player in an essentially natural operation—child birth—is
not the same as being ill. Yes, medical opinion and expertise have their
place, but they should start from the position that this is a normal, joyful
experience, where the woman is the person who is calling the
shots.’22
c. ‘We want to explore all the areas which we know are important to
women: a safe birth which is as normal as possible; a choice of place of
birth, with home birth as a realistic option.’23
d. ‘I start with home births. They are not desired by all women, but a
substantial number want home delivery …. The Association for
Improvements in Maternity Services has reported many instances of
women being pushed into hospital delivery, usually at a very late stage in
pregnancy, because they are told that no midwife will be available to
support a home delivery. Those women have been denied real choice
and have lost control of their birth arrangements….We need more
midwives if we are to improve the prospect of real choices being
available to women—choices such as home births, but also births in
other settings.’24
HL Deb 15 January 2003 vol 643 col 296 (Lord Hunt of Kings Head).
HC Deb 11 February 1998 vol 306 col 325 (Patrick Nicholls).
23 HL Deb 15 January 2003 vol 643 col 295 (Lord Hunt of Kings Head).
24 ibid 291, 293 (Baroness Noakes).
21
22
13
Definition of Midwifery Services
30. The general definitions of midwifery services do not exclude the
provision of labour services at home. For example, Article 42(2)(e) of
Directive 2005/36/EC includes the duty of ‘caring for and assisting the
mother during labour,’ without geographical restriction.
31. Most international organisations positively include the home within the
definition of the profession.
a. The International Confederation of Midwives, in a statement adopted the
15th June 2011, explains that ‘[a] midwife may practise in any setting
including the home, community, hospitals, clinics or health units.’25
b. This statement has been adopted by
i. the World Health Organisation,
ii. the Midwives Alliance of North America26 and
iii. the International Federation of Gynaecology and Obstetrics.27
C. Overview of Case Law
Autonomy
32. Competent adults are free to make decisions about their health, even if
this may harm them. 28 An example would include that of a man who
validly refused to have his gangrenous foot amputated.
29
Mentally
competent women would thus have the right to a totally non-assisted
home birth, even in a situation where it would cause grave harm to
herself or the resultant child. 30 This has been applied in relation to
childbirth where a woman refused a caesarean in spite of medical
evidence that she and the baby could both die and there was a risk of the
baby being born with severe brain damage. 31
33. Substantial authority can be found for this point:
a. MB Baroness Elizabeth Butler-Sloss: ‘The right to determine what shall
be done with one’s own body is a fundamental right in our society. The
International Confederation of Midwives, ‘ICM International Definition of the Midwife’
<http://www.internationalmidwives.org/who-we-are/policy-and-practice/icm-international-definition-ofthe-midwife/> accessed 15 February 2015.
26 Midwives Alliance North America, ‘What is Midwife?’ <http://mana.org/about-midwives/what-is-amidwife> accessed 15 February 2015.
27 See Standards for Pre-registration Midwifery Education, 4.
28 Airedale NHS Trust v Bland [1993] AC 783, 857.
29 Re C [1994] 1 W.L.R. 290.
30 Bridgit Dimond, Legal Aspects of Nursing (2008 Pearson Health): ‘If there is the refusal of consent, then
the woman, if mentally competent, has the right to have a non-assisted home-birth.’
31 St George’s Healthcare Trust v. S [1998] 3 All ER 673.
25
14
b.
c.
d.
e.
concepts inherent in this right are the bedrock upon which the principles
of self determination and individual autonomy are based.’32
‘A patient cannot be said to be lacking capacity just because their thinking
appears bizarre and irrational even if a refusal is likely to cause serious
harms to her baby or the patient herself.’33
‘If there is the refusal of consent, then the woman, if mentally competent,
has the right to have a non-assisted home birth.’34
‘A midwife has no right to be at a baby’s birth if a woman chooses to
exercise her autonomy by not contacting or engaging a midwife.’35
‘The right to determine allows patients to refuse treatment even if the
outcome is harmful.’36
34. This not only means that there is no statutory right to compel a mentally
capacitated mother to go into hospital for the birth of a child whatever
the clinical indicators, but also that the law will respect the decisions
taken by a woman in respect of the location of her parturition. 37
Respect
35. The UK’s central commitment in maternity policy is that of womencentred care with a stress on autonomy. 38 This puts maternal decisionmaking at the forefront and specifically includes ‘decisions on whether to
have a home birth (including unassisted birth), assisted midwife-led birth,
or a hospital birth and on whether or not to have an elective caesarean
section.’ 39
36. Scamell provides the following chronology as evidence of this:
a.
‘Changing Childbirth’ white paper in 1993 affirmed that women-centred
is a core principle upon which all NHS maternity services should be
delivered.40
b. 2007 Maternity Matters: ‘women and their partners will be able to
choose between three different options. These are: a homebirth;
birth in a local facility, including a hospital, under the care of a
midwife; birth in a hospital supported by a local maternity care
Re MB [1997] 2 F.C.R. 541.
C[25] of Butterworth’s Health Services Law and Practice (Bloom and Harris).
34 Bridgit Dimond Legal Aspects of Nursing (Pearson Education 2008).
35 Richard Griffith, and others Law and professional issues in midwifery (Learning Matters 2010), 84.
36 Richard Griffith and others Law and Professional Issues in Nursing (Learning Matters 2010), 95.
37 Bridgit Dimond, Legal Aspects of Nursing (2008 Pearson Health), 360.
38 Muireann Quigley, ‘Risk and Choice in Childbirth: Problems of Evidence and Ethics?’ (2014) Journal of
Medical Ethics 791.
39 ibid.
40 Department of Health, ‘Changing Childbirth’ (London, HMSO 1993) 4; Department of Health,
‘Maternity Matters: Choice, Access and Continuity of Care in a Safe Service (London, HMSO 2007) 5.
32
33
15
team including
obstetricians.’41
midwives,
anaesthetists
and
consultant
37. To this we may also add the following:
a. Nursing and Midwifery Council Circular: ‘Should a conflict arise between
service provision and a woman’s choice for place of birth, a midwife has
a duty of care to attend her … Women have the right to make their
own decisions on these issues if they are competent to do so and
midwives have a duty of care to respect a woman’s choice.’42
b. National Midwifery Circular Annexe 2: ‘A woman can make the choice
for a particular place of birth at any stage in pregnancy… Regardless
of the setting, a midwife providing care to a woman, must take care to
identify possible risk and pre plan to mitigate those risks through her
approach to care.’43
c. National Midwifery Council Conference Papers: ‘Implicit in the
Government policy in all four constituent countries of the UK is the
promotion of choice for women in relation to their pregnancy care
and place of birth. This includes being offered the choice of
planning a birth at home.’44
d. The Consensus Statement of The Maternity Care Working Party, agreed
by The Royal College of Midwives and The Royal College of
Obstetricians and Gynaecologists. This Statement records that ‘there is a
shared emphasis on offering pregnant women more choice, … there is
also an explicit focus on facilitating normal birth and reducing
interventions…For the majority of women, pregnancy and childbirth are
normal life events requiring minimal intervention.’45
Encouragement
38. In the UK healthy women are not encouraged, per se, to have a home
birth. It is crystal clear that the final decision where to give birth is an
individual choice. However, it is equally clear that the Nursing and
Midwifery Council see no problem in a healthy woman giving birth at
home,
and,
that,
in
some
circumstances
it
may
be
positively
advantageous.
Mandie Scamell, ‘She Can’t Come Here!’ Ethics and the Case of Birth Centre Admission Policy in the
UK’ (2014) Journal of Medical Ethics 813.
42 NMC Circular 8-2006 (13 March 2006)
<http://www.aims.org.uk/Journal/Vol18No1/NMCHomebirthCircular.htm> accessed 15 February 2015.
43 National Midwifery Circular, ‘Supporting Women in their Choice for Home Birth,’ Annexe 2 NMC
M/10/15 (July 2010).
44 NMC Council Papers provided to the Midwifery Committee, cited in Bridgit Dimmond Legal Aspects of
Midwifery (Quay Books 2014).
45 Making Normal Birth a Reality: Consensus Statement from the Maternity Care Working Party, The
Maternity Care Working Party (November 2007).
41
16
39. Most recently, in December 2014, the National Institute for Health and
Care Excellence, a statutory body set up in 1999 by SI 1999/220, issued
guidance that midwives should explain to women that they ‘may choose
any birth setting (home, freestanding midwifery unit, alongside midwifery
unit or obstetric unit), and support them in their choice of setting
wherever they choose to give birth.’ 46
40. Given that the health justification weighed heavily in the court’s
assessment of proportionality, it is useful to note the following UK
official observations in this regard:
a. In 1992, The House of Commons Maternity Care Select Committee
concluded that ‘the policy of encouraging all women to give birth in
hospital cannot be justified on grounds of safety.’47
b. The NHS official guidance states that ‘[g]iving birth is generally safe
wherever you choose to have your baby….For women having their
second or subsequent baby, a planned home birth is as safe as having
your baby in hospital or a midwife-led unit.’48
c. Nursing and Midwifery Council: ‘home birth is at least as safe as hospitalbased birth for healthy women with normal pregnancies.’49
d. ‘The available information on planning place of birth suggests that,
among women who plan to give birth at home, there is a higher
likelihood of a normal birth, with less intervention.’50
e. The National Institute for Health and Care Excellence guidance of
December 2014 states that for low-risk women, ‘planning to give birth at
home or in a midwifery-led unit (freestanding or alongside) is particularly
suitable because the rate of interventions is lower and the outcome for
the baby is no different compared with an obstetric unit.’51
f. National Professor Mark Baker of NICE states: ‘Where and how a
woman gives birth to her baby can be hugely important to her….there is
no reason why women at low risk of complications during labour should
National Institute for Health and Care Excellence (NICE), ‘NICE Confirms Midwife-led Care during
Labour is Safest for Women with Straightforward Pregnancies’ <http://www.nice.org.uk/news/pressand-media/midwife-care-during-labour-safest-women-straightforward-pregnancies> accessed 15 February
2015.
47 House of Commons Health Committee (Chairman N Winterton), Maternity services. Vol I, report. HC 29I. London: HMSO, 1992. (p. xii) 1.
48 NHS (n 13).
49 NMC (n 42).
50 National Midwifery Circular (n 43).
51 National Institute for Health and Care Excellence, ‘Intrapartum Care: Care of Healthy Women and their
Babies
during
Childbirth,
NICE
Guidelines’
[CG190]
<https://www.nice.org.uk/guidance/date/2014/december> accessed 15 February 2015.
46
17
not have their baby in an environment in which they feel most
comfortable.’52
g. The Royal College of Midwives director for midwifery Louise Silverton,
said: ‘We agree that decisions about where to give birth should be based
on the best possible evidence. The Birthplace Study showed that planned
out of hospital births were, generally, as safe for the baby as those in
hospital for low-risk women having their second or subsequent baby.’53
h. National Perinatal Epidemiology Unit: ‘For healthy multiparous women
with a low-risk pregnancy, there are no differences in adverse perinatal
outcomes between planned births at home or in a midwifery unit
compared with planned births in an obstetric unit.’54
i.
Nursing and Midwifery Council: ‘Research over the last couple of
decades suggests that home birth is at least as safe as hospital-based birth
for healthy women with normal pregnancies.’55
Circumstances Limiting Midwives in Attending Births Outside Hospitals
41. There has been some mention in the literature about the availability of
midwives limiting the election of home birth. 56
42. However, first, it is clear that, as per section 1(4) of the National Health
Service Act 2006, that services provided under the NHS are free at the
point of treatment. Second, the shortages of midwives is a wider problem
in the provision of health services in the UK and not a legal problem or
fetter to the exercise of choice. Third, it is clear that there are obligations
upon midwives to contact their superiors and the local NHS trust in case
they feel that they are unable to fully assist a woman give birth. 57
43. Taken together, this not only shows that the limits are of a non-legal
nature, but that shortages of midwives are matter taken seriously. The
presumption is that there should be a midwife to assist in giving birth.
NHS, ‘NICE Recommends Home Birth for Some Mums’ (3 December 2014)
<http://www.nhs.uk/news/2014/12December/Pages/NICE-recommend-homes-births-for-somemums.aspx> accessed 15 February 2015.
53 See Charlie Cooper, ‘Home Birth Could be as Dangerous as “Driving without Putting your Child’s
Seatbelt on”’ The Independent (22 January 2014) <http://www.independent.co.uk/life-style/health-andfamilies/health-news/home-births-could-be-as-dangerous-as-driving-without-putting-your-childs-seatbelton-9078184.html> accessed 15 February 2015.
54 ‘Perinatal and Maternal Outcomes by Planned Place of Birth for Healthy Women with Low Risk
Pregnancies: the Birthplace in England National Prospective Cohort Study,’ 2011 British Medical Journal
343 <http://www.bmj.com/content/343/bmj.d7400> accessed 15 February 2015.
55 NMC Circular 8-2006.
56 e.g. HC 464 – I House of Commons Health Committee Provision of Maternity Services Fourth Report
of Session 2002–03Volume I [17], [176].
57 NMC (n 42).
52
18
Cases on Women’s Right to Home Birth
44. There have been no court cases and/or administrative decisions
concerning women’s right to home birth, physical autonomy or private
life. There have been a number of cases on the question of ‘forced
caesareans.’ 58 However, no court has ever considered the issue of whether
there is a right to a home birth such that if the NHS refuses to provide a
midwife, the mother would be free to pursue the NHS in damages.
45. There would be a number of legal impediments to recognising this right:
a. Courts typically refrain from dictating how NHS trusts should distribute
their resources, as they are policy-oriented and polycentric decisions that
they are not always equipped to make.59
b. Short of an identifiable legal flaw in the decision-making process, the
courts are unlikely to find that an individual refusal by the NHS was
unlawful.60
46. However, this only means that it is unlikely that a right to home birth can
be established in the narrow sense of having a valid claim in damages
against the NHS for failing to provide such services. It is nonetheless
clear that the election of the location of where to give birth is regarded
as an element of respect and autonomy (see above).
D. History of Regulation of Home Birth
47. As emerges from the above, the question of home birth was never
regulated per se. Rather it was a) left to the representative bodies of
midwives to promulgate Rules and Codes of Practice and b) statute law
imposed an obligation upon the Secretary of State for the Home
Department to make provision for such services.
48. The provision of midwives, for example, could be traced back to earlier
versions of the 2006 Act, including:
a. The National Health Service Act 1946, which requires the minister to
provide all ‘reasonable requirements… and services,’ including the
services of specialists ‘whether at a hospital…. Or, if necessary on
medical grounds, at the home of the patient’ (s3 (1)(c)).
Re DM [2014] EWHC 3119 (Fam); Mental Health Trust v DD [2014] EWCOP 11.
R. v Cambridge DHA Ex p. B (No.1) [1995] 1 W.L.R. 898 at 906; see De Smith Judicial Review (7th edn,
Sweet & Maxwell), 1-043.
60 R (Ross) v West Sussex [2008] EWHC 2252 (Admin); Tracey Elliott, Responsibility, Liability and Scarce
Resources: The legal perspective in Nursing Law and Ethics 4th Edition John Tingle and Alan Cribb (eds)
(Wiley, 2014).
58
59
19
b. The National Health Service Act 1977, which requires the minister to
provide the same ‘such other facilities for the care of expectant and
nursing mothers’ (s31 (d)).
49. As to the more general history, we note that midwives were first subject
to a Registration regime in 1902, which also set up a Central Midwives
Board. It was this Board that was charged with making rules for
regulating the practice of midwifery. Once again this demonstrates the
self-regulated nature of the profession. 61
50. Similarly, in 1936, the Public Health Act imposed notification obligations
upon ‘any person in attendance upon the mother’ who gave birth and
upon the father ‘if he is actually residing on the premises where the birth
takes place.’ 62 Once again, this points to the availability of midwifery
services at the home.
51. The upshot of this analysis demonstrates that the issue of home birth has
never properly been regarded as a medical service that needs to be
regulated. It is rather the midwifery profession that must be licensed and
conform to certain standards of conduct. This is undertaken by the now
Nursing and Midwifery Council. The issue of home birth is rightly
regarded as a choice personal to the woman in question, although it may
be questioned whether the courts will recognise this right in the legal
sense of awarding damages where a woman is denied a midwife for a
home birth.
Davies C, Beach A, Interpreting Professional Self Regulation: A History of the UK Central Council for Nursing
Midwifery and Health Visiting (Routledge 2000).
62 Public Health Act 1936, s203(1).
61
20
II. GERMANY
A. Summary
52. The right to home birth is explicitly recognised by the German legislator
since 30 October 2012. It is enshrined in paragraph 24f 63 of Volume 5 of
the German Social Code Book (Sozialgesetzbuch – SGB V). 64 Women about
to give birth have the right to be assisted by a midwife prior to, during,
and after the birth process, regardless of where it takes place, according
to paragraph 134a SBG V. The same provision regulates that the
corresponding costs are borne by the health insurance company of the
mother, including cases of home birth. Furthermore, the German
Midwife Code (Hebammengesetz – HebG) 65 regulates the training, license,
and practice of midwives.
53. Although the number of home births per annum in Germany is low, there
seems to be a firmly established and state-backed practice of out-ofhospital births, assisted mainly by freelance midwives. The legal and
practical situation in Germany reflects the longstanding tradition in the
country to recognise the right of the mother to freely choose where to
give birth to her baby and to medically and financially assist the birth,
regardless of whether it takes place in or outside of a hospital. This
approach is backed both by the government’s and the people’s positive
attitude towards home birth in accordance to the exercise of the mother’s
fundamental right to privacy.
B. Legal Framework
54. The health insurance companies cover the provision of medical care and
assistance, which includes childbirth. Health insurance, being part of the
broader
realm
of
social
insurance,
is
a
federal
competence
(Bundeskompetenz) and is thus regulated in federal law (Bundesrecht). The
right to give birth at home and the corresponding institutional and
financial frameworks are regulated in the context of the statutory social
This paragraph has been introduced with the Gesetz zur Neuausrichtung der Pflegeversicherung (PflegeNeuausrichtungs-Gesetz) from 23.10.2012 (BGBl. I S. 2246), in force since 30 October 2012.
64 Sozialgesetzbuch (SGB) Fünftes Buch (V) - Gesetzliche Krankenversicherung from 20. Dezember 1988
(BGBl. I S. 2477).
65 Gesetz über den Beruf der Hebamme und des Entbindungspflegers (Hebammengesetz - HebG)
from 4 June 1985 (BGBl. I S. 902).
63
21
insurance provisions of the Federal Republic of Germany. The social
insurance regulation is a federal legislative prerogative according to the
competences allocation in Article 74 section 1 number 12 of the German
Basic Law (Grundgesetz – GG). 66 The concrete provisions on childbirth are
thus found in the federal Social Code Books (Sozialgesetzbücher) and not
on the local level.
55. Paragraph 24f SGB V, entitled ‘Confinement,’ explicitly states that the
mother has the right to an ambulant or a stationary childbirth.
Furthermore, the provision clarifies that the mother can give birth in a
hospital; in an institution, supervised by a midwife (Hebamme) or a
childbirth assistant (a male midwife or Entbindungspfleger); 67 in another
medically supervised institution; in a midwifery practice; or at home.
56. Paragraph 134a SGB V, entitled ‘Midwifery Assistance’ is of central
importance for regulating the contractual relationship between the
national health insurance entities and the midwife syndicates, which
provides for the financial reimbursement of the midwifery childbirth
service. Sentence 2 of section 1 of paragraph 134a SGB V requires the
contracting parties (i.e. both the insurance companies and the midwife
syndicates according to sentence 1 of the same section) to, inter alia,
consider and account for the right of the insured mothers to freely chose
the place of birth, enshrined in paragraph 24f SGB V, and to ensure the
needed quality of the childbirth assistance accordingly. Since paragraph
24f SGB V explicitly recognises the right of the mother to give birth at
home, as seen above, the insured person is entitled to midwifery
assistance, if she chooses to give birth at home, and this service is
covered by the health insurance of the mother.
57. The Midwife Code (HebG) regulates the professional training, license,
and practice of midwives in Germany. As all medical and healing
professions, it is also regulated by federal law (Bundesrecht) according to
Article 74 section 1 number 19 GG, which allocates the legislative
competence prerogative to the federal (Bundeskompetenz) and not to the
local level (Landeskompetenz). Paragraph 4 section 1 of the HebG states
Grundgesetz für die Bundesrepublik Deutschland (GG) from 23 Mai 1949 (BGBl. I S. 1).
Both female and male childbirth assistants (correspondingly ‘Hebamme’ and ‘Entbindungspfleger’ under
German law) will be further referred to as ‘midwives’ for the purposes of this report.
66
67
22
that childbirth assistance can be provided only by medical practitioners
(i.e. doctors) and by persons who are entitled to the professional title
‘midwife’ (either in Germany or in another Member State of the
European Union in accordance with German and EU law provisions for
recognition of professional titles).
58. Paragraph 4 section 2 HebG defines childbirth assistance as the
supervision of the childbirth process from the beginning of the first stage
pains, assistance in the actual process of confinement and the supervision
of the puerperal process.
59. Under paragraph 1 of the HebG, persons are entitled to the
professional title ‘midwife’ and thus to practice midwifery after
accomplishing the relevant professional training and successfully applying
for a license. Both the training and the acquiring of the license are
regulated in further paragraphs of the HebG.
60. Another legislative regulation, which mentions home birth, is the Code
on
the
Prevention
and
Settlement
of
Pregnancy
Conflicts
(Schwangerschaftskonfliktgesetz – SchKG) 68. The main aim of the code is to
provide for a far-reaching protection of the life of the unborn child in
cases of unplanned pregnancy through the establishment of a profound
pregnancy counselling service. It thus does not explicitly deal with the
right of the woman to give birth at home. However, paragraph 26 of the
SchKG, which deals with the procedure of a confidential childbirth,
states in its section 6 that the midwife, giving childbirth assistance in the
case of a home birth, is obliged to notify the date and place of birth of
the child immediately after the birth to the counselling station engaged
with the concrete confidential childbirth case. This implies that the
SchKG also accounts for the right of the woman to give birth at home
and extends the protection of both mother and child to cases of home
birth, also in the risk group of unplanned pregnancies.
C. Statistical Data Related on Home Birth in Germany
61. The following table provides statistical data about the number of
childbirths in Germany in and outside of hospital for a period of 10 years
Gesetz zur Vermeidung und Bewältigung von Schwangerschaftskonflikten
(Schwangerschaftskonflikitengesetz - SchKG) from 27.07.1992 (BGBl. I S. 1398).
68
23
between 2002 and 2012. 69 Its aim is to give an overview about the actual
relevance of the matter of home birth in Germany and to show how such
cases are dealt with in practice. It has been prepared using data from the
reports of the Society for Quality in the extra-clinical Childbirth
Assistance (Gesellschaft für Qualität in der Außerklinischen Geburtshilfe e.v. –
QUAG) 70 and the Federal Agency for Statistics (Statistisches Bundesamt). 71
1. Year
2. Number
of
childbirths
in
Germany
in total
3. Number
of
childbirths
in hospital
4. Approximate
number
of
childbirths
outside
of
hospital in total
(difference between
column 2 and 3)
5. % of the
total
number
childbirths
outside
of
hospital out
of
all
childbirths
(column 2)
6. Number
of
registered
childbirths
outside of
hospital
7. % of the
number
of
registered
childbirths
outside
of
hospital out of
the
total
number of outof-hospital
births (column
4)
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
721,9
709,4
708.3
688,2
675,1
687,2
684,9
667,4
680,4
665,0
675,9
711,458
699,795
695,885
675,688
663,979
675,892
674,751
656,265
668,950
654,243
665,780
10,492
9,625
12,465
12,594
11,165
11,341
10,175
11,199
11,463
10,829
10,164
1.45
1.36
1.76
1.83
1.65
1.65
1.49
1.68
1.68
1.63
1.50
8,238
8,568
8,715
8,640
8,351
8,221
8,326
8,769
9,045
8,828
9,090
78.8
88.8
69.9
68.6
74.8
72.5
81.8
78.3
78.9
81.5
84.5
62. It must be remarked that there is no national source in Germany, which
provides comparable statistics about the precise number of out-ofhospital childbirths in total, since not all of these are planned or
registered. Column 4 gives the difference between the total number of
registered childbirths (according to data of the civil registry offices) and
the number of childbirths in hospital (which are regularly registered by
the hospitals). This difference gives an approximate idea about the
number of births, which happen outside of hospitals.
63. For the year 2012 this number has been 1,50% of all childbirths in
Germany. In this regard it must be considered that this number includes
The numbers, provided in columns 2-4 and 6, are in thousands.
Gesellschaft für Qualität in der Außerklinischen Geburtshilfe e.V. (QUAG e.V.), ‘Geburtenzahlen in
Deutschland’ (2014) <http://www.quag.de/quag/geburtenzahlen.htm> accessed 5 February 2015.
71 Statistisches Bundesamt, ‘Geburten’ (2015)
<https://www.destatis.de/DE/ZahlenFakten/GesellschaftStaat/Bevoelkerung/Geburten/Geburten.html
> accessed 5 February 2015.
69
70
24
not only the planned home births, assisted by a midwife, but also births
in birth centres, and all unplanned births outside of hospital without
midwifery assistance. 72 Column 6 shows the number of planned and
registered births outside of hospital, which for the 2012 is 9.090 or
84,5% of the approximate total number of all births outside of hospital
for this year. This shows that most out-of-hospital births are planned,
which speaks for an established practice in this regard despite the relative
low number of such births. Out of this number, 3.689 home births (or
36,3% of the approximate number all out-of-hospital births for 2012),
7.024 births in midwife-led institutions like independent birth centres,
and 21 births in centres run by an obstetrician have been registered for
2012. 73 Of all women giving birth out of hospital, 96% had no specific
problems. During birth, 16.8% of the women were transferred to a
hospital. No woman died during or after such birth. 74
64. The statistics show that most childbirths in Germany still take place in
hospitals. However, there is a considerable amount of home births as
well (more than 1/3 of all out-of-hospital births) and most of the out-ofhospital-births are planned, assisted by a midwife, and run without
complications. These results can be linked to the right of a woman to
freely choose where to give birth and the fact that the national insurance
companies cover the birth expenses. The standardised average amount of
home birth financial assistance, which health insurance agencies cover in
Germany, is approximately 1058 Euro for a day-time home birth and
approximately 1208 for a home birth in the night. 75 This is the estimated
amount based on the contractual relationship regulated in paragraph 134f
SGB V. This amount covers all expenses related to the childbirth,
including the midwifery assistance and service. The only amount, not
Deutscher Bundestag - 18. Wahlperiode - Drucksache 18/900 vom 24.03.2014, ‘Antwort der
Bundesregierung auf die Kleine Anfrage der Abgeordneten Cornelia Möhring, Birgit Wöllert, Sabine
Zimmermann (Zwickau), weiterer Abgeordneter und der Fraktion DIE LINKE. - Drucksache 18/738 Wirtschaftliche Lage der Hebammen und Entbindungspfleger’ 3
<http://dipbt.bundestag.de/dip21/btd/18/009/1800900.pdf> accessed 5 February 2015.
73 Gesellschaft für Qualität in der außerklinischen Geburtshilfe e.V. (QUAG e.V.), ‘Qualitätsbericht 2012.
Außerklinische Geburtshilfe in Deutschland’ (2014) 13
<http://www.quag.de/downloads/QUAG_bericht2012.pdf> accessed 5 February 2015.
74 ibid.
75 Deutscher Bundestag, op. cit. (n 9) 4.
72
25
covered by the health insurance, is the on-call-duty service fee for the
midwife, which amounts to 200-300 Euro. 76
65. Further data by the Federal Agency for Statistics shows that there is an
increasing demand for out-of-hospital midwifery service. 77 The number of
midwives in Germany has risen from approximately 16.000 in 2000 to ca.
21.000 in 2011. The number of midwives, who work in hospitals only
part time has also increased over the last years. It must also be noted that
many midwives are employed by a hospital, while working as freelancers
at the same time. Although there is no clear statistical evidence about the
exact number freelance midwives, who give home birth assistance,
according to the GKV-Spitzenverbandes, some 17.700 midwives were
working as freelancers as of December 2013 and 5.140 have also given
freelance midwifery birth assistance. These numbers have increased since
2009. The German Midwifery Association (Deutscher Hebammenverband e.v.
– DHV) estimates that some 3.500 freelance midwives are currently in
charge of giving (mostly) out-of-hospital birth assistance.
66. Out-of-hospital births (including home births) are normally assisted by
freelance midwives, i.e. midwives who are not permanently employed by
and working only in a hospital. Therefore the provided data about the
increase of the number of freelance midwives, practising out of hospitals,
can be interpreted as reflecting an increasing demand for out-of-hospital
births, including home births, and the effort of the German State to
ensure far-reaching childbirth assistance, mother and child protection,
and health insurance for such cases.
D. Governmental Support for the Right to Home Birth
67. There does not seem to be a lot of legislative or public debate in
Germany on the topic of the woman’s right to home birth. This is
possibly due to the fact that such a right, including the health-insurance
covered right to be assisted by a midwife during a home birth, has been
considered as self-evident by the German populace and explicitly
Bundeszentrale für gesundheitliche Aufklärung, ‘Die Hausgeburt’ (2015)
<http://www.familienplanung.de/schwangerschaft/geburt/geburtsort/hausgeburt/> accessed 5 February
2015.
77 The following data is from Deutscher Bundestag, op. cit. (n 9) 4.
76
26
recognised as a social right in the above mentioned provisions of SGB V.
As already mentioned above, the right of the woman is enshrined in the
federal social codes of the country and referred to in peripheral
legislative provisions related to pregnancy, childbirth, medical assistance,
and health insurance.
68. The federal government in Germany has explicitly stated the importance
of the women’s right to freely choose where to give birth and its support
of this right. This has been stated, e.g., in the Federal Government’s
reply to the enquiry of several Members of Parliament on the financial
situation of midwives in Germany from 25 October 2010. 78 In its reply,
the Government explicitly confirmed its commitment to the protection of
the right of all women to freely choose where to give birth. It also
reassured the Parliament that, correspondingly, all hospitals, medical
institutions, associations and their medical personnel are obliged to
provide the insured women with childbirth assistance, necessary for the
efficient exercise of this right.
69. The commitment of the new Federal Government 79 to this issue has been
restated in its reply to a similar MP enquiry from 24 March 2014. It
reassured that the provision of a comprehensive nationwide childbirth
assistance is an important aim on the agenda of the new broad coalition,
governing Germany. It is enshrined in the coalition contract in the basis
of the new government’s mandate and includes the opportunity and right
of the woman to freely chose where to give birth, be it in a hospital, at
home, in a birth centre, or in a midwifery practice. 80
E. Public Debate
70. The researcher did not come across any evidence that the right of a
woman to give birth and home and receive the necessary medical
assistance is much contested by any of the State institutions in Germany
or by the public. However, there is some debate about whether this right
Deutscher Bundestag - 17. Wahlperiode - Drucksache 17/3377 vom 25.10.2010, ‘Antwort der
Bundesregierung auf die Kleine Anfrage der Abgeordneten Dr. Martina Bunge, Cornelia Möhring, Diana
Golze, weiterer Abgeordneter und der Fraktion DIE LINKE – Drucksache 17/3255 – Zur Situation der
Hebammen und Entbindungspfleger in Deutschland nach der Honorareinigung in der Schiedsstelle’ 2
<http://dip21.bundestag.de/dip21/btd/17/033/1703377.pdf> accessed 5 February 2015.
79 In power since 17 December 2013.
80 Deutscher Bundestag, op. cit. (n 9), 2 and 8.
78
27
can be considered as anchored even constitutionally in the German Basic
Law (Grundgesetz – GG). The German Midwifery Association states in an
advisory opinion to an enquiry by the Green Party in Germany regarding
the service, which pregnant women are entitled to, that the woman’s right
to freely choose where to give birth stems from the constitutionally
enshrined general right to privacy and personality in Article 2 of the GG
(Allgemeines Persönlichkeitsrecht). 81
71. The DHV e.V. also describes the right to freely choose where to give
birth as a constitutionally guaranteed right of self determination of the
women. The DHV e.V. calls out for political activism, aimed at securing
this right and enhancing the standards for midwifery assistance when
exercising this right. 82
72. In an open letter, Ms. Katharina Jeschke, member of the Executive
Committee of the DHV e.V., even links the right to home birth to the
right to human dignity in Article 1 GG. 83 In German law this article
enjoys the highest possible standard of legal and constitutional
protection, which can be by no means derogated from. Moreover, the
letter makes a reference to the jurisprudence of the ECtHR, stating that
in 2010 the ECtHR has decided that the European State-parties to the
ECHR are obliged to respect the woman’s right to freely chose where to
give birth and to guarantee that medical assistance is to be provided for
every childbirth, regardless of where it takes place. The author makes
reference to the ECtHR Case of Ternovszky v. Hungary 84.
73. This decision seems to be referred to in many public debate forums on
pregnancy and the women’s right to choose where to give birth in
support of this right. In most of these cases the debating parties refer to
Deutscher Hebammenverband e.V. (DHV e.V.), ‘Ergänzende Stellungnahme des Deutschen
Hebammenverband e. V. im Nachgang des Anhörungstermins am 09.11.2011 vor dem
Gesundheitsausschuss des Deutschen Bundestages’ (2011) 3 <http://www.hebammenlandesverbandthueringen.de/landesverband/daten/standpunkte/DHV_Ergaenzende_Stellungnahme__Anhoerung_SGB
.pdf> accessed 5 February 2015.
82 Deutscher Hebammenverband e.V. (DHV e.V.), ‘Wahfreiheit des Geburtsortes ist ein Frauenrecht!’ (7
March 2014) <http://www.hebammenverband.de/aktuell/nachrichtdetail/datum/2014/03/07/artikel/wahlfreiheit-des-geburtsortes-ist-ein-frauenrecht/> accessed 5 February
2015.
83 Deutscher Hebammenverband e.V. (DHV e.V.), ‘Die freie Wahl des Geburtsortes ist ein
Menschnerecht’ (4 July 2014)<http://www.hebammenverband.de/aktuell/nachrichtdetail/datum/2014/07/04/artikel/die-freie-wahl-des-geburtsortes-ist-ein-menschenrecht/> accessed 5
February 2015.
84 Ternovszky (n 6).
81
28
the authority of the ECtHR in order to stress the fundamental
importance of this right not only in Germany but across Europe.
74. In
her
book
‘Hausgeburt
und
Gebären
im
Geburtshaus:
Mit
Erfahrungsberichten von Frauen, die Mut machen,’ 85 Christine Trompka
advocates that women and public organisations should campaign for an
explicit constitutional entrenchment in the GG of the women’s right to
freely choose where to give birth. She urges that the matter is raised by
addressing Members of Parliament with this demand and organising
public demonstrations.
75. These examples manifest the government’s and the populace’s positive
attitude towards home birth in accordance to the exercise of the mother’s
fundamental right to choose where to give to her baby.
Christine Trompka, Hausgeburt und Gebären im Geburtshaus: Mit Erfahrungsberichten von Frauen, die Mut machen
(Fidibus Verlag 2011).
85
29
III. ITALY
A. Summary
77. Despite the lack of a uniform legislation at national level, home birth in
Italy is certainly a permissible activity, if not a right of the expectant
mother. Numerous Regions have provided statutory regulation on the
matter and a bill is currently before the national Parliament. At the
moment, the major issue is the cost of the procedure and the availability
of a rebate. The home birth practice is still rather scarce, but a number
of initiatives by midwifery associations are gradually encouraging the
recourse to this procedure. National courts have never directly addressed
the issue, but the right to home birth has been incidentally affirmed in
some recent cases.
B. Legal Framework
Relationship between State and Regions – National Level
78. In Italy, the legislative competence to regulate public health is shared
between the national parliament and regional councils. At the central
level, the State ensures that all citizens benefit from equal health
standards
by
enacting
‘framework
legislation,’
which
contains
fundamental principles and guidelines. At the local level, each Region has
the power to enact complementary legislation in compliance with the rule
set out at the national level. In addition, the Regions have broad and
almost exclusive administrative powers in the matter, which include
various aspects of management, funding and monitoring of local health
centres and the services they provide.
79. The issue of home birth is not expressly regulated at national level.
However, the legal basis for recognising freedom of choice in relation to
the setting and modalities of childbirth can be found both in principles
enshrined in the Constitution and in a number of legislative instruments.
Constitutional Principles
80. The women's right to freely choose how and where to give birth could be
considered a direct consequence of the right to self-determination
established under Article 2 of the Italian Constitution. With regard to
30
medical treatments, this principle receives specific protection pursuant to
Article 32(2), which reads as follows:
No one may be obliged to undergo any health treatment except under the
provisions of the law. The law may not under any circumstances violate the limits
imposed by respect for the human person.
81. Another right that may be relevant in this context is the inviolability of
personal freedom recognised under Article 13. The strict correlation
between these principles and the women’s right to home birth is
explicitly mentioned in certain draft legislation on home birth 86 and in
recent decisions. 87
Legislation on Implementation of National Health Service
82. A fundamental act in the matter of medical treatments is the Legge
833/1978, which provides for the creation of the Servizio Sanitario
Nazionale (National Health Service or SSN). According to Article 33 of
this act, any form of medical inspection or treatment is in principle
subject to the consent of the individual. In the case of mandatory medical
treatments, these must be prescribed by law and carried out ‘in
compliance with human dignity, civil and political rights, including, to
the extent that is possible, the freedom of choice of the practitioner
and the venue where the treatment will occur.’ 88
83. The principle of freedom of choice in the undertaking of medical
treatments underpins the entire legislation and extends to home health
care. With specific regard to this, Article 13 of the Legge lists, among the
services that the Local Health Units must provide, ‘general medical
assistance and nursing, both at home and in specialised facilities’. In
addition, Article 25 – upon specifying that health services comprise
general health care, specialist health care, nursing and pharmaceutical
service – provides that ‘specialist treatments can be offered at home on
conditions that allow a decrease in the number of hospitalisations.’
Consiglio Regionale del Lazio, Proposta di legge 4 Aprile 2014 n. 152, ‘Norme per il parto a domiclio e
nelle case Maternità’
<http://atticrl.regione.lazio.it/allegati/propostelegge/TESTI_PROPOSTI/PL%20152.pdf> accessed 15
February 2015.
87 See below, Section D.
88 Legge 23 Dicembre 1978, n 833 <http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1978-1223;833> accessed 15 February 2015 (emphasis added).
86
31
Other National Instruments
84. Despite the lack of uniform legislation on the matter, the home birth
practice seems widely acknowledged by the national legislator. Evidence
of this can be found in a number of acts that take into account home
birth in the context of planning various aspects of the Servizio Sanitario
Nazionale. In the ‘Third biannual plan of actions and interventions to
promote the protection and development of infants and children’, the
‘development of forms of childbirth assistance outside the hospital
within the SSN’, such as ‘maternity houses’, home birth units, and
childbirth centres, has been put on the government agenda as one of the
measures to ‘improve the quality of childbirth’. 89 Another example can be
found
in
the
collective
agreement
between
State,
Regions,
and
representatives of the health care trade unions, which includes home
birth among the treatments for which minimum rates of pay are
established. 90
Regional Legislation
85. In the absence of a uniform national regulation, various Regions have
enacted legislation on home birth. These include Lombardy, 91 Piedmont,
Marche, 92 Emilia Romagna, 93 Lazio, 94 and the Autonomous Provinces of
Trento and Bolzano. 95 The degree of specificity of each legislative act
varies, but they all present some common traits.
86. The expectant mother is normally given the freedom to choose between
three possible birth settings: (i) hospitals; (ii) out-of-hospital birth
centres, or ‘maternity houses’; (iii) home. Home birth is generally allowed
D.P.R. 21 gennaio 2011, ‘Terzo Piano biennale nazionale di azioni e di interventi per la tutela dei diritti e
lo sviluppo dei soggetti in età evolutiva’, in Gazz. Uff., 9 maggio 2011, n. 106.
90 Provvedimento della conferenza permanente per i rapporti tra lo Stato, le Regioni e le Province
Autonome di Trento e Bolzano 23 marzo 2005, in Suppl. Ordinario n. 144 alla Gazz. Uff., 13 giugno, n. 135,
Allegato n. 5.
91 Regione Lombardia, L.R. 8 maggio 1987, n. 16
<http://www.arca.regione.lombardia.it/shared/ccurl/687/149/lr16.pdf> accessed 15 February 2015.
92 Regione Marche, L.R. 27 Luglio 1998, n. 22
<http://monet.regione.marche.it/bur/98/66.0408/leggi/2.html> accessed 15 February 2015.
93 Regione Emilia Romagna, L.R. 11 agosto 1998, n. 26 <http://demetra.regione.emiliaromagna.it/al/monitor.php?urn=er:assemblealegislativa:legge:1998;26> accessed 15 February 2015.
94 Regione Lazio, Decreto del Presidente della Regione 1 Aprile 2011, n. 29
<http://www.melogranoroma.org/site/docs/doc88.pdf> accessed 15 February 2015.
95 Provincia Autonoma di Trento, D.G.P. 30 dicembre 1998, n. 15077.
89
32
for low-risk pregnancies, but in some Regions it may be subject to the
pre-approval of a specialist. The out-of-hospital and home birth health
care is provided by qualified midwives, who must carry with them certain
medical equipment and follow a specific procedure that is outlined in
detail. The condition of the house and the availability of emergency aid
are also elements taken into account by these statutes when providing for
the choice of home birth. In all cases, the new-born must be visited by a
paediatrician within 12 or 24 hours.
87. The most significant issue with out-of-hospital birth relates to the cost of
the health care service. When provided in a hospital or in a SSN-run
health centre, the procedure is completely free. However, when the
expectant mother decides to give birth in an out-of-hospital birth centre,
such as a maternity house, or at home, she has to bear the entire cost of
the procedure. In the light of this disparity, and acknowledging that the
choice of out-of-hospital birth may lead to long-term savings for the
SSN, some Regions have set up a system of rebates. The problem is that
the differences among Regions can be dramatic. As seen above, only a
small number of Regions have enacted legislation on the matter; in the
majority of cases, the availability of a compensation for homebirth – not
to mention the availability of the procedure itself – remains vague.
Additionally, not all the Regions that laid down a normative framework
have also provided for the possibility of financial aid. Finally, the amount
awarded is subject to significant fluctuation from Region to Region, and
ranges from a partial compensation of 750 Euro to the entire cost of the
procedure, up to 2-3000 Euro. Although this does not affect the abstract
availability of the health care service, it creates significant disparities and
may concretely hamper this possibility for families on a low income.
Draft Legislation
88. Considering the fragmented normative framework and the pressing social
need in the matter of home birth, various bills have been introduced
before the Parliament in order to provide a more detailed and consistent
regulation. The latest draft legislation, presented on 16 April 2013,
includes and strengthens various elements of the current Regional
33
legislation. 96 It aims, among other things, at promoting an adequate
medical assistance towards childbirth, safeguarding the health of the
expectant mother, and promoting a degree of midwifery service apt to the
risk of the pregnancy. The bill reaffirms the freedom of choice on the
birth setting, creates incentives for natural and spontaneous births, lays
down detailed instructions on the service to be provided by the
midwives, and, most importantly, direct the Regions to create specialised
teams to provide home birth health care free of charge. The bill has not
yet been discussed by the Parliament.
C. Public Debate and Practice
89. The choice to give birth at home is still rather uncommon in Italy.
According to a survey conducted by the Ministry of Health in 2010, the
number of home births is very low, amounting to approximately 0.4% of
the total. 97 The limited recourse to this procedure can be explained in the
light of the general mistrust that surrounds it. Indeed, the medical
community
seems
prevailingly
oriented
against
home
birth.
Representatives of the main associations of Gynaecology and Obstetrics
have expressed major doubts on the safety of the procedure and the
adequacy of the means that the SSN can put in place in order to provide
this kind of health care. 98
90. However, a new trend has emerged in the last decades seeking to
encourage the choice of home birth when the health conditions of the
mother do not necessitate hospitalisation. A midwifery association
explicitly endorsing home birth has elaborated a set of guidelines to
promote awareness of this practice and regulate the conditions that allow
it and the procedure to be followed. 99 An ever-growing phaenomenon is
Proposta di legge 16 aprile 2013 n. 755, Camera dei Deputati
<http://documenti.camera.it/apps/commonServices/getDocumento.ashx?sezione=lavori&tipoDoc=test
o_pdl_pdf&idlegislatura=17&codice=17PDL0009020> accessed 15 February 2015.
97 Ministero della Salute, (CeDAP) Analisi dell’evento nascita - Anno 2010
<http://www.salute.gov.it/imgs/C_17_pubblicazioni_2024_allegato.pdf> accessed 15 February 2015.
98 See L. Cuppini, ‘Parto in casa, polemiche sul «bonus» di 800 euro della Regione Lazio’, in Corriere della
Sera (16 May 2014) <http://www.corriere.it/salute/14_maggio_16/parto-casa-polemiche-bonus-800-euroregione-lazio-99110cfe-dcfb-11e3-a199-c0de7a3de7c1.shtml> accessed 15 February 2015.
99 ‘NASCEREINCASA’ Associazione Nazionale Culturale Ostetriche Parto a Domicilio e Casa Maternità,
‘Linee guida di assistenza al travaglio e parto fisiologico a domicilio e casa maternità, anno 2013’
<http://www.nascereacasa.it/wp-content/uploads/2013/05/linee_guida_Parto_a_domicilio_2013.pdf>
accessed 15 February 2015.
96
34
the creation of the so-called ‘maternity houses’. These are out-of-hospital
facilities, which are designed to host women at the latest stages of their
pregnancies in a comfortable environment that resembles a private
residence. These places are usually run by midwifery organisations and
provide services closely related to home birth. Their prominence is such
that they are explicitly mentioned in the list of possible birth settings set
out by a number of legislative instruments. 100
D. Overview of Case Law
91. The issue of home birth has never come under the scrutiny of national
courts as such. This is an important element to consider when assessing
the existence of a right to home birth in Italy; the mere fact that this
right has never been questioned directly before a court is an important
indicator
of
its
significance.
This
relevance
has
recently
found
confirmation in two different cases.
92. The first case was brought before the Tribunale Amministrativo Regionale
(Regional Administrative Tribunal or TAR) of Tuscany by a number of
women who availed themselves of midwifery service during their home
births. 101 Upon denial of their requests for rebate by the Regione Toscana
(Region of Tuscany), they filed an appeal before the TAR in order to
obtain redress for the violation of their right to health. The TAR
dismissed the appeal on the grounds of lack of jurisdiction, but in so
doing, it affirmed an important principle. According to the TAR, the
claimants are entitled to a ‘full subjective right’ to receive fundamental
medical treatments provided for by the SSN, which include home health
care during childbirth. Their right is encompassed in the right to health
as enshrined in Article 32 of the Constitution and cannot be abated as to
become a mere ‘interest’. Their cases must therefore be heard by ordinary
civil courts.
93. The second case is a civil claim brought before the Tribunale di Firenze
(Court of First Instance of Florence) against the local Health Service
Unit (USL) by two parents of a child born with serious physical
100
101
See Section B above.
T.A.R. Firenze sez. II, 03/09/2009 n. 1412, in Foro amm. TAR 2009, 9, 2419.
35
disability. 102 The plaintiffs had decided to use an out-of-hospital birth
centre administered by the USL in order to perform a natural childbirth.
Upon the insurgence of certain birthing complications, it is claimed that
the midwives were unable to take the necessary measures to prevent
damage to the infant. The Tribunale was persuaded of the negligence of
the midwives, but did not grant the relief sought by the plaintiffs.
Indeed, the Tribunale acknowledged that the birth centre was not
equipped to respond to a similar emergency and even where the midwives
had acted promptly, they could not have possibly avoided the causation
of the damage to the new-born. Since the causal nexus between the
conduct of the midwives and the damage is lacking, they cannot be held
responsible for it. According to the Tribunale, the parents were aware of
the risks inherent in the procedure being carried out in this centre and,
having voluntarily requested this procedure, they accepted those risks
similarly to what occur during home birth. Thus, the Tribunale reaffirms
that the decision on the setting and the modalities of the childbirth is
ultimately left to the parents, but they also bear the risk of any collateral
damage inherent in the procedure of their choice.
102
Tribunale Firenze, 03/09/2013, in Responsabilita' Civile e Previdenza 2014, 2, 605.
36
IV. FRANCE
94. French law does not specifically address the issue of home birth.
Correspondingly, the legislature has not had to interpret the right to
home birth, or generally, the right to physical autonomy and private life.
95. Home birth, however, seems to have been always legal in France. It used
to be a standard practice, in 1950, for instance, when 54% of all births
took place at home. 103
96. Nevertheless, since 2002 midwifery services have become an on-going
topic of public discussion in the context of regulation of insurance for
civil responsibility. In particular, as a consequence of the so-called ‘loi
Kouchner’ (named after the then-minister who initiated the law) Article
L1142-2 has been inserted into the Code of Public Health according to
which all ‘health professionals’ including midwives must subscribe to
insurance for civil responsibility. 104
97. Therefore, midwife’s attendance at home birth is legal, provided that they
have contracted insurance for civil liability. However, it is possible to
assert that home birth is currently effectively impossible in France due to
this insurance obligation (and not the lack of legislation).
98. While hospitals need to cover the fees for civil responsibility insurance
of the midwives working there, midwives that would attend home birth
are liable to cover costs themselves. Media reports, 105 as well as midwifery
organisations 106 situate the insurance costs of a midwife attending home
birth between 19,000 and 25,000 Euro per year, almost the same amount
as a midwife’s yearly salary.
99. A 2011 report of the French ‘Cour des comptes’ states that among the 72
midwives that declare assisting home birth, solely 4 were ensured. 107 The
French Cour des comptes found this to be unacceptable in 2011 and called
Cour des comptes, ‘Le Rôle des sage-femmes dans le système de soins’ La Sécurité Sociale (2011), 178.
Code de la Santé Publique, art L1142-2
<http://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=LEGITEXT000006072665&idArticle=L
EGIARTI000020891399&dateTexte=20100217> accessed 15 February 2015.
105Mathilde Damge, ‘Des Sages-Femmes et des Parents Jugent L’accouchement a Domicile Menace’ Le
Monde (29 October 2013) <http://www.lemonde.fr/economie/article/2013/10/29/l-accouchement-adomicile-proche-du-trepas_3498228_3234.html> accessed 15 February 2015.
106 CDAAD, ‘Qui Sommes-Nous’ <http://cdaad.org/qui-sommes-nous/> accessed 15 February 2015.
107 Cour des comptes (n 102) 189.
103
104
37
upon the State to strictly enforce the obligation to undertake insurance
against non-complying midwives. 108
100.
This results in a situation where the practice of home birth, while not
being illegal, becomes de facto impossible. This has triggered some public
opposition with demonstrations taking place to this effect in France in
October 2013. 109 It seems that there are about 1000 to 3000 home births
out of 800 000 births in France each year. 110
101.
There seem to be no plans to amend the current state of the law with
regard to home birth. A related evolution is, however, taking place as
midwives are trying to introduce ‘birth houses’ (‘maisons de naissance’),
which seek to provide women with a mid-way solution between hospital
birth and home birth in light of the problems associated with the latter.
102.
There has been no case law with relation to women’s right to home
birth, physical autonomy or private life, as the lawfulness of home birth
is not in doubt in France. The public debates seem to be centred around
the insurance issue.
103.
French law generally regulates home health care, including home care
for the elderly. In particular, Articles L312-1, 6° and 7° of the Code for
Social Action and Families regulate home health care, 111 which does not
cover midwifery services.
ibid, 189.
Damge (n 103).
110 ibid.
111Code de L’action Sociale et des Familles, art L312-1
<http://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000020892821&cidTexte=L
EGITEXT000006074069&dateTexte=20110205&oldAction=rechCodeArticle> accessed 15 February
2015.
108
109
38
V. SWEDEN
A. Legal Framework
104.
There are no express laws regulating the issue of home birth. Under
section 2 of the Heath and Sickness Care Act (1982:763), care is to be
provided ‘with respect for all individual’s equal worth and for the
specific individual’s dignity.’ 112
105.
Under section 2a of the same act, health care is to be provided in the
manner that fulfils the requirements of good care. This specifically means
under point 1, ensuring the patient’s need for security in care and
treatment, and under point 3, based on respect for the patient’s right of
self-determination as well as integrity. 113
106.
The Patient Act (2014:821) has as its objective strengthening and
clarifying a patient’s status within health and sick care operations, as well
as promoting a patient’s integrity, self-determination and participation. 114
Under section 4:1 of the same act, the patient’s right to selfdetermination and integrity shall be respected. 115 The act mandates that
the patient’s consent is necessary for any treatment (with exceptions
made for certain emergencies). Under section 5:1 the care is to be formed
and provided in cooperation with the patient. 116
107.
The Patient Act also addresses choice of treatment. According to
section 7:1, if there are several treatment alternatives that are consistent
with scientific and proven experiences, the patient is to be given the
Hälso- och sjukvårdslag (1982:763): Mål för hälso- och sjukvården § 2 Målet för hälso- och sjukvården
är en god hälsa och en vård på lika villkor för hela befolkningen. Vården skall ges med respekt för alla
människors lika värde och för den enskilda människans värdighet. Den som har det största behovet av
hälso- och sjukvård skall ges företräde till vården. Lag (1997:142). This act is available in Swedish at
<www.notisum.se/rnp/Sls/lag/19820763.htm> accessed 15 February 2015.
113 Hälso- och sjukvårdslag (1982:763), sec. § 2a) Hälso- och sjukvården ska bedrivas så att den uppfyller
kraven på en god vård. Detta innebär att den ska särskilt
1. vara av god kvalitet med en god hygienisk standard och tillgodose patientens behov av trygghet i vården
och behandlingen,
2. vara lätt tillgänglig,
3. bygga på respekt för patientens självbestämmande och integritet,
4. främja goda kontakter mellan patienten och hälso- och sjukvårdspersonalen,
5. tillgodose patientens behov av kontinuitet och säkerhet i vården. (effect 1 January 2015).
114 Patientlag (2014:821), § 1 Denna lag syftar till att inom hälso- och sjukvårdsverksamhet stärka och
tydliggöra patientens ställning samt till att främja patientens integritet, självbestämmande och delaktighet.
This act is available in Swedish at <www.notisum.se/rnp/sls/lag/20140821.htm> accessed 15 February
2015.
115 Patientlag (2014:821), § 4:1 Patientens självbestämmande och integritet ska respekteras.
116 Patientlag (2014:821), § 5:1 Delaktighet - Hälso- och sjukvården ska så långt som möjligt utformas och
genomföras i samråd med patienten.
112
39
possibility to choose the treatment she prefers. The patient is to receive
the chosen treatment, if it seems reasonable as assessed against the
medical condition at issue and the costs for the treatment. 117
108.
From 1990 until 2005 there was a governmental agency regulation
concerning advice as to home birth (SOSFS 1990:22, Allmänna råd vid
hemförlossning, repealed by SOFS 2005:14 without being replaced).
109.
Against the statutory background above, the information and advice
available to individuals in the Care Guide (1177 vårdguiden, 111.1177.se)
as promulgated by the Swedish Health Authorities (Sveriges landsting och
regioner), states the following in Swedish: 118
Birth not at a Hospital
Planned Home Birth
Almost all women choose to give birth at a hospital, but
several midwives offer the choice of giving birth at home.
Planned home births are becoming more common. Even if
the majority of births are successful, there always is the
risk that something unexpected will occur. A mother then
might need to go to the hospital in an ambulance during
the birth. In addition, you should contemplate that the
same pain medications are not available at home as at a
hospital.
If it is a first birth, you ought not choose to have a home
birth as you do not know how you will react to the birth.
In addition, the risks are greater with a first child. The
pregnancy must be normal and you ought to in advance
contract with a midwife on how the birth is to proceed.
The birthing center at your local hospital ought to also be
informed.
110.
Each of the twenty health care regions (Landsting) in Sweden makes
the decision as to whether a home birth is covered by the health care
system. The majority of health care regions have decided not to be the
costs of home birth, leaving those with the mother. The Stockholm
Health Care Region decided in 2002 that women fulfilling the
requirements they set out had the right to economic compensation for
Patientlag (2014:821), § 7:1 När det finns flera behandlingsalternativ som står i överensstämmelse med
vetenskap och beprövad erfarenhet ska patienten få möjlighet att välja det alternativ som han eller hon
föredrar. Patienten ska få den valda behandlingen, om det med hänsyn till den aktuella sjukdomen eller
skadan och till kostnaderna för behandlingen framstår som befogat.
118 Translated by the researcher.
117
40
the costs of midwives at a home birth. The costs for a midwife at a home
birth are estimated at about € 2500 in uncomplicated cases. 119
111.
The Stockholm Health Care Region requires the presence of two
licensed midwives with home birth. Forty-one women applied for the
compensation in 2002 and 34 were granted it. 120
112.
As seen from the above discussion, home birth is permitted in
Sweden. A doctoral dissertation from the Karolinska Institutet by
Lindgren, Hemförlossningar i Sverige 1992-2005, förlossningsutfall och kvinnors
erfarenheter [Home Birth in Sweden, 1992-2005, Birth Results and
Women’s Experiences], is the first national survey of planned home birth
in Sweden. It identified the ratio of 0.95 for each one thousand women,
with an average of 100 women each year planning on a home birth.
Another source has cited the statistic 100-200 home births per one
thousand annually. 121
113.
Home birth has always been permitted by law. The societal trend has
been traced by Lindgren, with over 90 % of the births in Sweden in 1890
were home births, in 1940 homes births were app. 30 %, and in 2005,
home births were less than 1 %. According to Lindgren, this trend is a
reflection of, as well as cause for, better prenatal and pregnancy health
care over this period. 122
114.
Assistance by midwives is tolerated by the State. However, midwives
cannot write prescriptions for medicines, so if such are needed a doctor
must issue the prescription.
115.
There are NGOs in Sweden, such as Föda Hemma (Birthing at Home),
which provides information to women interested in birthing at home as
well as the names of midwives willing to assist in home birth. 123
116.
The provision of care by midwives is regulated by the same standards
of conduct regardless of whether the care is provided at a hospital or at
home, and regardless of whether the midwife is employed by the public
See eg the midwives website at <www.egenbarnmorska.se/priser> accessed 15 February 2015.
Ingela Wiklund et al., Stockholms läns landstring betalar hemförlossning i vissa fall, Läkartidningen No. 51-52,
Vol. 100, 4272 (2003).
121 Josefin Jönsson and Malien Perstenius, Barnmorskors tankar och upplevelser kring planerade hemförlossningar –
En kvalitativ interview studie (Lund University, Master’s Thesis 2014) 5.
122 Helena Lindgren, Hemförlossningar i Sverige 1992-2005, förlossningsutfall och kvinnors erfarenheter [Home Births
in Sweden, 1992-2005, Birth Results and Women’s Experiences] 10.
123 Föda hemma’s website is at <https://fodahemma.wordpress.com/2005/07/06/foreningen-fodahemma/> accessed 15 February 2015.
119
120
41
health care system or works privately. The equipment the midwife is to
have is also set out by regulation. The Swedish law does not draw a
distinction between ‘home health care’ as opposed to hospital care in the
provision of health care.
42
VI. BOSNIA AND HERZEGOVINA124
A. Legal Framework
117.
Home birth and midwifery services are regulated by the following
laws of the Federation of Bosnia an Herzegovina (FBiH):
1) The Law on Health Protection of FBiH 125
2) The Law on Nurses and Midwives of FBiH 126
3) The Law on Rights, Obligations and Responsibilities of the
Patients of FBiH. 127
Home birth is not explicitly allowed by the FBiH legislation, however, it
is not prohibited either. Therefore, women can arrange home birth (and
they actually do it surprisingly often). However, they do it without any
medical assistance, incurring all the potential risks. Although midwives
and health professionals are not expressly prohibited from assisting at
home birth, they are still not allowed to assist at home birth by the
medical institutions where they work. Accordingly if they would assist at
home birth, they could risk losing their jobs. 128 Anecdotal evidence
suggests that women do try to find and engage midwives to assist with
home birth, but it appears to be impossible owing to the reasons
outlined above.
118.
The Law only regulates the scope of the duties of midwives and the
place where their services should be provided. 129 The Law also stipulates
that midwifery services can only be performed ‘in the manner and under
the conditions established by this Law, and special regulations on health
care.’ 130 As home is not listed as one of the places for the provision of
This report concerns only the legal regulation of home birth and midwifery services in the Federation of
Bosnia an Herzegovina (FBiH), and does not cover the Republic of Srpska.
125 Zakon o Zdravstvenoj Zaštiti, Službene Novine Federacije BiH 46-10 (30 July 2010)
<http://www.fmoh.gov.ba/images/federalno_ministarstvo_zdravstva/zakoni_i_strategije/zakoni/zakoni
_PDF/zakon_o_zdravstvenoj_zastiti_46-10.pdf> accessed 15 February 2015.
126
Zakon
o
Sestrinstvu
i
Primaljstvu
43
(28
May
2013)
<http://www.fmoh.gov.ba/images/federalno_ministarstvo_zdravstva/zakoni_i_strategije/zakoni/zakoni
_PDF/Zakon_o_sestrinstvu_i_primaljstvu_43_13.pdf> accessed 15 February 2015.
127 Zakona
o Pravima, Obavezama i Odgovornostima Pacijenata 40/10 (8 July 2010)
<http://www.fmoh.gov.ba/images/federalno_ministarstvo_zdravstva/zakoni_i_strategije/zakoni/zakoni
_PDF/Zakon_o_pravima_obavezama_i_odg_pacijenata_40-10.pdf> accessed 15 February 2015.
128 Zakon o Sestrinstvu i Primaljstvu (n 122).
129 ibid, arts 6 and 13.
130 ibid, art 14.
124
43
midwifery services, 131 the assistance by midwives could potentially be
considered as prohibited by an a contrario interpretation of this provision.
119.
Article 13 of the Law, however, stipulates that midwifery services,
among others, could be provided in a ‘community,’ which is interpreted
as local community or local ambulance, where future parents can get
necessary information. 132 Mostly this term is used with reference to
nurses, who visit mothers after birth and show them how to handle and
take care of a baby. Therefore, the term ‘community’ cannot be
interpreted as allowing home birth.
120.
The Law requires a medical institution to have all the equipment
needed so as to enable providing assistance in case of complications
during labour, which makes any options apart from medical institutions
effectively unavailable for women to give birth.
121.
The Law effectively sanctions midwives for assisting in home birth. 133
Specifically, the Law prescribes that midwives will be punished with a
fine amounting from 250 BAM to 1000 BAM, if they provide midwifery
care contrary to the provisions of this law. The Law, however, does not
provide specifically what constitutes assistance in home birth.
122.
The Law does foresee assisting the patients in cases of medical
emergency. Unplanned home birth is not specifically listed (nor any other
cases of emergency), but the Law assigns the duty to midwife to assist in
cases of emergency. Those cases are the ones where not providing
assistance would lead to permanent injuries or severe consequences to
health or life of a patient.
123.
It is reported that there are exceptional cases, where a number of
Roma women, who do not have health insurance and access to health
care, have birth at home. In these cases, the women are assisted by
ambulance, which usually does everything in its power to transfer
pregnant women into a hospital. The costs of birth in these cases are
ibid, art 13.
ibid.
133 Zakon o Sestrinstvu i Primaljstvu (n 122).
131
132
44
covered from the budget funds pursuant to the Decision of the FBiH
government. 134
124.
Following birth, women who have chosen home birth, have also
reported difficulties with registering their children in the registry of
citizens, as they request that a child has been examined by a doctor and a
midwife.
125.
Additionally, the medical insurance does not cover midwifery services
provided at home. Women who chose to have labour at home have to pay
for midwifery services themselves.
B. Home Health Care
126.
The Law on Basis of Social Care, Care for Civil Victims of War and
Care for Families with Children of the FBiH foresees home care. Home
health care includes helping with daily tasks such as bathing, eating,
cleaning the home and preparing meals. Persons entitled to home care are
people entirely incapable to work, men older than 65 and women older
than 60, and persons with permanent mental and physical difficulties.
The provisions on home health care, however, are not applicable to the
case of home birth.
Odluka o Usvajanja Programa Utroška Sredstava sa Kriterijima Raspodjele Sredstava ‘Tekući Transfer
Drugim Nivoima Vlasti-Zdravstvena Zaštita Roma u Federaciji Bosne i Hercegovine’ Utvrđenih Budžetom
Federacije Bosne I Hercegovine za 2014. Godinu Federalnom Ministarstvu Zdravstva, Službene Novine
Federacije BiH (2 July 2014).
134
45
VII. RUSSIAN FEDERATION
A. Summary
127.
In the Russian Federation the issue of home birth is not specifically
regulated by the legislation. Home birth as such is implicitly allowed
since voluntary consent is a necessary condition for any medical
intervention. However, according to the Russian legislation, medical
assistance to birth is an activity that requires license and could be
provided only by and in appropriate medical organisations. Assistance in
delivery provided with breach of license’s terms as well as provided
without license constitutes an administrative offence. This de facto
prevents midwives from assisting at home birth. Assistance without
license if has caused harm to health or death, constitutes a criminal
offence.
B. Legal Framework
Assistance in Delivery as a Type of Medical Activity Requiring License
128.
Under Article 12 (46) of the Federal Law ‘On licensing of certain
types of activity,’ 135 medical activity is included in the range of those,
requiring appropriate license. Under Article 3 of the Regulation on
licensing of medical activity,
136
medical activity constitutes works
(services) under the list in accordance with to the annex thereto.
According to the Annex to Regulation on licensing of medical activity, 137
‘obstetrics’ and ‘obstetrics and gynecology’ fall within the list of activities
that constitute medical activities, and are subject to licensing in
accordance with the Regulation.
Rules Concerning Medical Assistance in Delivery
Federal Law of 4 May 2011 No. 99-FZ ‘On licensing of certain types of activity’
<http://www.consultant.ru/document/cons_doc_LAW_169804> accessed 5 February 2015.
136 Regulation on licensing of medical activity (excluding activity, provided by medical organisations and
other organisations, included into private system of health care within the territory of innovation center
‘Skolkovo’ <http://www.consultant.ru/document/cons_doc_LAW_145228/?frame=1> accessed 5
February 2015.
137 List of works (services) comprising medical activity: Annex to the Regulation on licensing of medical
activity (excluding activity, provided by medical organisations and other organisations, included into private
system
of
health
care
within
the
territory
of
innovation
center
‘Skolkovo’
<http://www.consultant.ru/document/cons_doc_LAW_145228/?frame=1> accessed 5 February 2015.
135
46
129.
According to Article 37 (1) of the Federal law ‘On fundamentals of
health protection of citizens in the Russian Federation,’
138
medical
assistance is organised and provided in accordance with procedures of
providing medical assistance, which are mandatory for compliance within
the territory of Russian Federation by all medical institutions, as well as
on the basis of standards of medical assistance.
130.
Pursuant to Article 26 of the Procedure of providing medical
assistance (under the heading ‘obstetrics and gynecology’) 139 medical
assistance to women during delivery and post-delivery periods is
provided by specialised and urgent medical assistance in medical
organisations with a license for medical activities, including services of
obstetrics and gynecology. The requirements concerning organising the
activities of such organisations, their personnel and equipment are laid
down in the Annexes 6-11 to the Procedure. The Procedure does not
provide for the possibility of personnel of these organisations assisting at
home birth including urgent cases.
131.
Thus, under Russian legislation, assistance in conducting delivery is a
form of medical activity and can be provided only in a medical
organisation, which has a relevant license.
Consent to Assistance in Delivery as a Form of Medical Interference
132.
Article 2 of the Federal Law ‘On fundamentals of health protection of
citizens in the Russian Federation’ defines the notions of medical
assistance, medical service and medical intervention. Medical assistance
are actions aimed to support or recover health including providing
medical services. Medical service is a medical intervention(s) aiming at
preventive care, diagnosing and curing of diseases, medical rehabilitation
and having an independent final significance; medical intervention
includes conducting by a medical professional towards a patient of kinds
of medical examinations and/or medical manipulations affecting physical
Federal law of 21 November 2011 No. 323-FZ ‘On fundamentals of health protection of citizens in the
Russian Federation’ <http://www.consultant.ru/document/cons_doc_LAW_173308> accessed 5
February 2015.
139 Procedure of providing medical assistance under the heading ‘obstetrics and gynecology’ (excluding use
of subsidiary reproductive technologies) (Approved by the Decree of the Ministry of Healthcare of the
Russian Federation of 12 November 2012 No 572n <http://www.rosminzdrav.ru/documents/5828prikaz-minzdrava-rossii-ot-12-noyabrya-2012g-572n> accessed 5 February 2015.
138
47
or mental state of a person and having a preventive, investigative,
diagnostic, curative or rehabilitation purpose. Thus, assistance in
delivery, being a form of medical service, is a medical intervention(s).
133.
According to Article 20 (1,3) of the Federal Law ‘On fundamentals of
health protection of citizens in the Russian Federation,’ medical
intervention towards a person can be conducted only on the basis of
his/her consent to it, and any person (or a parent or a legal
representative under relevant circumstances) has a right to deny medical
intervention and to demand its termination (except certain cases not
related to delivery).
134.
Thus, according to Russian legislation, assistance to delivery can only
be conducted with the consent of the woman, and the possibility of a
planned home birth without medical assistance is neither excluded nor
prohibited.
Potential Liability for Assistance in Delivery
135.
There is no rule in Russian legislation that explicitly provides for
liability in a specific case of assistance in delivery at home or otherwise
without license, but such assistance can constitute an administrative or
criminal offence if i) provided as a business or non-business activity in
breach of terms of license, ii) without license, as a business activity, iii)
without license, as a non-business activity, iv) without license, if has
caused harm to health or death.
136.
(i) Assistance in delivery in breach of terms of license:
•
Under the the Code of the Russian Federation on administrative
offences, conduct of business activity 140 in breach of terms of
special allowance (license), entails administrative penalty in the
form of a warning or a fine. 141 If the breach of license is gross, it
entails an administrative penalty in the form of fine or suspension
of activity. 142
A business activity is an independent activity, performed at one's own risk, aimed at systematically
deriving profit from the use of property, sale of commodities, performance of work or rendering of
services by persons, registered in this capacity in conformity with the law-established procedure. Civil Code
of the Russian Federation of 30 November 1994 No 51-FZ <http://www.consultant.ru/popular/gkrf1>
accessed 5 February 2015, art 2(1).
141 Code of the Russian Federation on administrative offences of 30 December 2001 No 195-FZ
<http://www.consultant.ru/popular/koap> accessed 5 February 2015, art 14.1 (3).
142 ibid, art 14.1 (4).
140
48
•
Conduct of activity not connected with deriving profit also entails
administrative penalty in the form of warning, fine or suspension
of activities, if in breach or in grave breach of terms or conditions
of special allowance (license), if such allowance (license) is
mandatory. 143
•
Thus, medical assistance in delivery by a licensed organisation
outside the premises of its venues equipped in accordance with
prescribed requirements, being a breach of the license’s terms,
potentially
constitutes
an
administrative
offence whether
conducted as a business or a non-business activity.
137.
(ii) Assistance in delivery without license as a business activity:
•
Conduct of business activity without special allowance (license), if
such
allowance
(such
license)
is
mandatory,
constitutes
an
administrative offence and entails administrative penalty in the
form of fine with or without confiscation of goods produced,
instruments of production and raw materials. 144
•
Thus, assistance in delivery without license if conducted as a
business activity constitutes an administrative offence.
138.
(iii) Assistance in delivery without license as a non-business
activity:
•
Conduct of activity not connected with deriving profit, without
special
allowance
(license),
if
such
allowance
(license)
is
mandatory, constitutes an administrative offence and entails an
administrative penalty in the form of warning, fine with or without
confiscation of goods produced, instruments of production and
raw materials, or suspension of activity. 145
•
Thus, assistance in delivery without license if conducted as a nonbusiness activity constitutes an administrative offence.
ibid, art 19.20 (2 and 3).
ibid, art 14.1 (2).
145 ibid, art 19.20 (1).
143
144
49
139.
(iv) Assistance in delivery without license if has caused harm to
health or death:
•
Medical or pharmaceutical activities conducted with negligence by
a person without a license, given that such license is mandatory,
that caused infliction of harm to human health or health are
punished by a penalty in the form of fine or by restraint or
deprivation of liberty. 146
•
Thus, assistance in delivery, being a form of medical activity,
without license that has caused harm to health or death is a
criminal offence.
C. Overview of Case Law
140.
The only widely discussed case concerning assistance at home birth is
a criminal case, in which in 2009 Elena Ermakova and her husband
Alexey Ermakov, were found guilty under Article 235 of the Criminal
Code (cited above) for providing medical assistance at home birth, which
had caused death of six newborns and harm to health of one newborn.
The judgment is not available, and the information is provided according
to a media news item. 147
D. Registration of Birth
141.
Another problem, arising for mothers rather than midwives, which is
now debated in Russia, concerns registration of birth of those newborns,
which were born outside medical institution.
142.
According to the existing legislation,
148
the grounds for official
registration of birth include among others (such as a document of birth,
issued by a medical organisation in which the delivery has taken place,
etc.) – a statement on birth made by a person who was present at the
delivery, in a case of delivery outside medical organisation and without
medical assistance. In the absence of any of these grounds, the official
Criminal Code of the Russian Federation of 13 June 1996 No 63-FZ
<http://www.consultant.ru/popular/ukrf> accessed 5 February 2015, art 235.
147 Nikita Zeya, ‘Newborns were tossed out with the water: in Petersburg a sentence is passed on the
founders of the “Kolybelka” center’ <http://www.gazeta.ru/social/2009/09/25/3265143.shtml>
accessed 5 February 2015.
148 Federal
Law of 15 November 1997 No 143-FZ ‘On the acts of civil status’
<http://www.consultant.ru/document/cons_doc_LAW_165347> accessed 5 February 2015, art 14 (1, 4).
146
50
registration is provided on the basis of the judicial decision on
establishment of a fact of delivery of the child by the particular woman.
143.
In June 2014 the Ministry of Justice of the Russian Federation worked
out and submitted for the public discussion a draft law, 149 which generally
excludes the possibility of official registration of a child born outside
medical organisation and without medical assistance on the basis of a
mere statement of a person who was present at the delivery. Such
possibility is only preserved according to the draft law, for cases of
delivery in hardly accessible or underpopulated territories, the list of
which is for the determination of the Government of the Russian
Federation.
144.
Among
the
reasons
for
this
amendment,
mentioned
in
the
Explanatory Note to the draft, is a high risk for life and health of women
and newborns as a result of delivery without medical assistance.
Draft law ‘On amendment of Article 48 of the Family Code of the Russian Federation and Articles 14
and
16
of
the
Federal
law
“On
the
acts
of
civil
status”’
<http://regulation.gov.ru/project/16066.html?point=view_project&stage=2&stage_id=10735> accessed
5 February 2015.
149
51
VIII. HUNGARY
A. Introduction
145.
Home birth has been an issue taken up by numerous women’s right
organisations well before the seminal case of Ternovszky v. Hungary 150 at
the ECtHR. Ternovszky was the ever first home birth case before the
ECtHR where Hungary was found in violation of Article 8 (right to
private life). The violation consisted in the ‘legal uncertainty’ that
resulted from the lack of clear regulation of home birth. Home birth per
se was not banned by criminal law but any health professional aiding in
the labour at home could face regulatory sanctions such as fines and
eventually serious criminal malpractice charges, which were as a matter of
fact imposed in several cases.
146.
The government responded to the Ternovszky judgment with issuing a
decree on the regulation of home birth which was the Government
Decree no. 35/2011 on the regulation, conditions of home birth and
exclusionary reason from home birth (Decree). 151
B. Government Regulation
147.
The Decree sets up a regulatory system that allows home birth under
certain conditions set out by the Decree. If a woman who wishes to give
birth at home but fails to follow the administrative procedure; or fails to
meet all the criteria described within, is not covered by the decree and
the health professionals (i.e. the midwives) could face regulatory and
even criminal sanctions for malpractice.
148.
First, the Decree sets up an administrative procedure through
which the pregnant woman should notify the local health administration
body. The Decree sets up a deadline for notification: by the end of the
36 t h week of the pregnancy the administrative procedure should be
started, it also regulates the hygienic conditions of the house where the
labour shall take place, the proximity between the house and the closest
hospital etc.
Ternovszky (n 6).
35/2011. (III. 21.) Korm. Rendelet az intézeten kívüli szülés szakmai szabályairól, feltételeiről és kizáró
okairól <http://www.complex.hu/jr/gen/hjegy_doc.cgi?docid=A1100035.KOR> accessed 1 February
2015 (in Hungarian).
150
151
52
149.
Second, the Decree also precisely defines the professional criteria
for health personal allowed to assist as midwives at home birth. The
requisite license and experience that are set out in the Decree have been
a source of controversy since the beginning because they exclude
independent midwives professionals, who have typically not worked in
hospital environment (see section C).
150.
Third, the Decree contains in its addendum (addendum no. 1) five
general
permissibility
requirements
and
nineteen
exclusionary
reasons, which represent the exhaustive list of eligibility criteria for
home birth. The person wishing to give birth outside of hospital should
satisfy all the permissibility reasons and not to fall under any of the
exclusionary reasons. In case of non-compliance with these norms the
birth is considered not allowed under the Decree and hence the various
sanctions may follow for the health professional partaking in the labour.
151.
The exclusionary reasons can be grouped into two categories. The
first deals with conditions with regard to the baby such as her weight
(that should be under 4000 gram) etc. The second deals with conditions
regarding the mother (she ought not to have HIV+ status, not to suffer
from alcohol or drug dependency, etc.), and history of the pregnancy.
C. Criticism of the Regulation by the CEDAW Committee
152.
The UN’s treaty body on women’s rights, the CEDAW Committee,
expressed some criticism of the Hungarian regulation in its ‘Concluding
Observations on the combined seventh and eighth periodic reports of
Hungary adopted by the Committee at its fifty fourth session (11
February – 1 March 2013).’ 152 The Committee touched on one aspect that
was heavily criticised by NGOs, namely the restricted definition of
‘health professionals’ who are allowed by the Decree to help at home
birth.
UN Committee for the Elimination of All Forms of Discrimination against Women, ‘Concluding
Observations on the Combined Seventh and Eighth Periodic Reports of Hungary adopted by the
Committee at its Fifty Fourth Session (11 February – 1 March 2013)’ (1 March 2013) UN Doc
CEDAW/C/HUN/CO/7-8 (2013).
152
53
153.
The Committee was ‘concerned (…) at the lack of choice for women
to give birth at home or in the hospital, due to various obstacles,
including the non-recognition of midwives as independent professionals.’
Based on this criticism, the CEDAW Committee issued the following
recommendation:
Ensure women’s choice to give birth at home or in the hospital by
recognising trained midwives as independent professionals and by
elaborating a legal framework and guidelines on security of home
deliveries, and providing training of obstetricians.153
D. Assessment of Regulation from NGOs
154.
There seems to be a broad consensus amongst the stakeholders that
the Decree established an overregulated system that instead of allowing
women to exercise their right to choose home birth act as a deterrent.
This has been the position of the Hungarian Civil Liberties Union 154 as
well as the opinion of an organisation of independent midwives. 155 They
criticise the demanding list of mandatory eligibility criteria that do not
allow room for individual assessment, therefore – they claim – very few
pregnant women can actually enjoy their right to choose.
155.
Some points of criticisms are the following:
(i) The Decree sets up a location requirement of the birth: the place of labour
should be of maximum 20 minutes distance from the closest hospital. It is seen
by many as an important burden on the choice of women.
(ii) The Decree requires the notification of a hospital latest by the end of the 36th
week of the pregnancy.
(iii) One of the main points of criticism is that the cost of the home birth is not
covered by national security as opposed to the birth in hospital. Therefore, it is
seen as discriminatory against those women who cannot afford the cost that can
easily attain 500 Euro.
(iv) The Decree sets up an age requirement (18-40) that is seen as unjustified by any
medical reason. The weight requirement for the baby has been criticized on
similar grounds.
ibid, Recommendation (e).
Video ‘Hol tart ma az otthonszülés?’ (Where are we with home birth?) produced by the Hungarian Civil
Liberties Union 7 April 2013 (the video is in Hungarian).
155 The websites are only available in Hungarian: <http://www.otthonszules.hu/>; <www.patent.org.hu>
accessed 15 February 2015.
153
154
54
(v) Many stakeholders contend that the problems of the Decree stem from the
process of consultation that preceded the Decree, which was dominated by the
opinion of hospital obstetricians who are traditionally hostile to home birth.
Therefore, the opinions of independent midwives were barely taken into account
for the elaboration of the Decree.
55